Ogot v Keroka Highway Service Station (Civil Appeal E712 of 2023) [2024] KECA 1499 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a landowner's rights, ruling that judges cannot call extra witnesses to rescue a weak case and landlords cannot repossess land without a court order.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether NSSF could lawfully repossess the suit land from the appellant without a court order and allocate it to the respondent
- 2.Whether the trial Judge erred in suo moto summoning a witness from NSSF under sections 22(b) and 23 of the Civil Procedure Act and section 173 of the Evidence Act after both parties had closed their cases
- 3.Whether the respondent had demonstrated its claim to judgment on a balance of probabilities
Key legal issues
#Suo moto summoning of a non-party witness at judgment stage
The Judge erred in invoking sections 22 and 23 of the Civil Procedure Act and section 173 of the Evidence Act to summon NSSF after both parties had closed their cases, without exceptional circumstances, in effect making a case for the respondent
Both sides had closed their cases and were awaiting judgment when the Judge, without any application, summoned the Managing Trustee of NSSF to testify 'on behalf of the Plaintiff'. The respondent had failed to join NSSF despite warning in the defence. The witness's evidence was shaky, the file lacked vital documents, and the witness took the file away. The court's conduct created an appearance of partiality contrary to the right to an impartial tribunal under Article 50.
Repossession of allocated land without a court order
NSSF could not lawfully repossess the suit land from the appellant without following lawful process; consequently the respondent, who admitted it could not speak for NSSF, had no case
NSSF was not a party and had not sued the appellant to repossess the land. The court applied the principle in Gusii Mwalimu Investment that possession cannot be obtained extra-judicially. The respondent purchased the land without inspection or due diligence, and neither party had title. The respondent's claim rested on a repossession that had no legal foundation.
First appellate court's duty
As a first appellate court, the Court of Appeal re-evaluates the evidence and retries the case per Selle vs. Associated Motor Boat Co.
The court restated the classic Selle principles: it is not bound by the findings of fact of the trial court, must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
Legal principles established
#- A judge or magistrate must remain an impartial arbiter and cannot, on own motion after both parties have closed their cases, summon a witness for one side absent exceptional circumstances
- Powers under sections 22 and 23 of the Civil Procedure Act and section 173 of the Evidence Act must be exercised with caution and only in exceptional circumstances so as not to compromise the perception of a fair trial
- A party (such as NSSF) cannot repossess allocated land extra-judicially without an order of a competent court
Court orders
#- 1.Appeal allowed
- 2.Trial court's judgment set aside
- 3.The respondent's suit at the ELC dismissed
- 4.Appellant awarded costs of the appeal and of the proceedings in the court below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal (not expressly stated in the judgment; appeal as of right against a first-instance judgment of the ELC)
Relief refused
#Eviction of the appellant, permanent injunction and damages awarded by the ELC
The trial court's judgment was set aside and the respondent's suit dismissed, so the relief granted below fell away
Costs
The appellant will have costs of the appeal and of the proceedings in the court below.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We allow the appeal and set aside the trial court’s judgment, with the efiect that the suit by the respondent at the ELC be and is hereby dismissed. The appellant will have costs of the appeal and of the proceedings in the court below.
The court cannot go into a fishing expedition looking for evidence, the court should not be seen to be assisting either side in the dispute.
Disputes in civil proceedings should be determined based on the pleadings and evidence.
We are not satisfied that by the time the respondent closed its case it had demonstrated that it was entitled to judgment on a balance of probabilities.
It is trite law that unless the tenant consents or agrees to give up possession the landlord has to obtain an order of a competent court or a statutory tribunal (as appropriate) to obtain an order for possession.
Issues in the judgment
#Paragraph numbering in the judgment is erratic (e.g. jumps from 38 to '30.' then '40.', and grounds 13 appear twice), but this does not affect the substance
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogot v Keroka Highway Service Station (Civil Appeal E712 of 2023) [2024] KECA 1499 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1499/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.